Section — Konings, Theologia Moralis
§ I. On the interpretation of law
- Definition. - Interpretation is the definition of the sense which certain more obscure words have in a law. I said: more obscure; for where the words of a law are clear, there can be no place, as is plain of itself, for interpretation properly so called, but only for epikeia.
- Division. I. By reason of the cause by which it is made, it is either 1° authentic, which is also called juridical and authoritative, and is made either by the legislator (or his superior or successor), for all subjects, or by a judge between litigating parties, - or 2° usual, which exists from legitimate custom, - or 3° doctrinal, which is made by learned men. Thus authentically the Pope, or the Congregations deputed by him for this, interpret all ecclesiastical laws; - the Bishop his own statutes or those of his predecessors; - the legislative assemblies among us civil laws, and the judge doubtful cases. You have an example of the usual in the quantity of food which by custom is permitted on a fast day for the evening collation; but of the doctrinal in the opinions of Canonists and Moralists concerning the sense of various ecclesiastical laws.
- II. By reason of the mode in which it is made, it is 1° strict or broad, according as it is made strictly according to the natural propriety of the words, or broadly according to a more benign sense; 2° simple or comprehensive, namely when the sense declared does not depart from the proper and customarily received signification of the words, or extensive, when beyond that which the words properly and according to the common sense taken denote, it concedes, prohibits, dispenses, etc. You have an example of strict and at the same time comprehensive interpretation, if by the word father is understood that one alone from whom someone proximately descends by birth; but broad and extensive, if in favorable matters also the grandfather. - The sign of comprehensive interpretation is generally the word we declare; of extensive, we decree.1
Notes to n. 142. (1) Barbosa, Dict. usufreq. Dict. 79. 80.
- Principles. - I. Authentic and usual interpretation has the force of law, since it is made either by the legislator himself, or by his authority, if it is given by a judge, or by his consent, if the discussion is about usual interpretation.
II. Authentic interpretation which is made by the legislator or his superior or successor obliges all subjects; that which is made by a judge obliges of itself only the litigating parties. I said: of itself only the litigating parties; for it can happen that as doctrinal it also obliges others.
III. Authentic extensive interpretation has no force unless it is legitimately promulgated; for by the very fact that it is not contained in the words of the law, it is a certain new law, and therefore must be promulgated in the manner of laws. But comprehensive interpretation, since it is not a new law, does not need promulgation, unless it is made by a successor or superior. I say: unless, etc.; for since the mind of the legislator is not as clearly known to these as to the legislator himself, they must recur to arguments and interpretations in order to investigate it; and these, since they introduce, as it were, a new law, need new promulgation.1
IV. Doctrinal interpretation is worth only as much as the reasons alleged by the Doctors. Cf. what was said at n. 55.
Notes to n. 143. (1) L. I, 200, and Law VII, de public. in rem actione.
- Rules of doctrinal interpretation.
A. The words of the law are to be accepted according to their proper and customarily received signification, unless something absurd or unjust would follow from this. For since law ought to be clear, the legislator is to be presumed to speak in that sense which the words have from the common acceptance of men. Thus the law by which those who have laid violent hands on a cleric are excommunicated is deservedly judged to include also those who have struck him with the foot.
B. A law speaking generally includes all proper significations, or "where the law does not distinguish, neither ought we to distinguish," except if, as was said just now, something absurd or unjust would follow unless a distinction were made.
C. In doubt concerning the true sense, attention must be paid to the mind of the legislator, to the end of the law, and to antecedent or consequent circumstances. But the end of the law is ordinarily discerned from the proemium of the law itself.
D. A penal and odious law is to be strictly interpreted in doubt; but a favorable law broadly. Hence the axiom: Favors are to be amplified and odious things restricted. Thus, if the penalty of excommunication is laid against a homicide, it will not affect him who inflicted a grave wound, although with the intention of killing, if death in fact did not follow. But a law granting the faithful intercourse with those who have not been excommunicated by name is explained most broadly.
E. In law it is not licit to argue from an equal case, indeed not even from the stronger case; for not the reason of the law, but the will of the legislator made known to the subjects, has the force of law. Hence this: The reason of the law is not law. Thus a suspension which by diocesan statute is threatened against clerics guilty of drunkenness does not affect those who have violated chastity, although the offense is graver, - and an excommunication brought against members of a secret society cannot be extended to those who have conspired for the death of an innocent man.
- Make exception, if not only the same, but the same and adequate reason at once runs in the equal case, so that if the law were not extended to the equal case, the legislator would have to be accused of injustice or imprudence; for then that rule of law has force: where there is the same reason, there the same disposition of law runs. But this happens:
1° In correlatives, for example, between bridegroom and bride; hence since the bride is freed from the obligation of betrothal because of the long absence of the bridegroom, the bridegroom is likewise freed because of the absence of the bride.
2° In things equated, as eggs and milk foods are with respect to the law of fasting.1
3° In connected things. Thus, for example, since a testament is by its nature revocable, to those to whom the law permits making a testament, it also permits revoking it.
4° In things contained. Wherefore he who can make a testament can also make a legacy.
What has been said has no force concerning penal law. St. Alph., L. IV, 473.
On the interpretation of laws cf. Kent.2
Notes to n. 145. (1) L. I, 200. (2) Vol. I, n. 460 sq.